An opening for Democrats.

July 8, 2022

          It would be a mistake for Democrats to assume that Republicans will defeat themselves at the ballot box. But Republicans are doing everything they can to provide Democrats with the political and strategic advantages necessary to win in 2022. Senator Rick Scott, Chair of the Republican National Senatorial Committee, released a GOP “platform” for 2022 that promised to raise taxes on 50% of Americans in the lowest wage brackets and terminate Medicare and Medicaid. (Why that fact is not the lead in every Democratic campaign advertisement is beyond me.) Today, reports are circulating that Republicans are contemplating a national abortion ban if they retake the house in 2022. See The Hill, House Republicans weigh national abortion restrictions.

          The Republican Party is in a quandary. Having exceeded expectations in overturning Roe v. Wade, they must continue to pander to the ultraconservative religious minority that has been the animating force of the Republican Party for the last decade. The laws of nature and politics ensure that GOP candidates will “run to the right” to capture the voters in Trump’s “MAGA-verse.”

As noted in The Hill, groups such as Heritage Action for America, Susan B. Anthony Pro-Life America, and CatholicVote are demanding that wannabe Speaker Kevin McCarthy hold a vote on a “Life Begins at Conception” bill on “day one” of a GOP-controlled House. McCarthy has no choice and must capitulate to their demand, or he will be flanked by ultraconservatives seeking to block his ascendancy to Speaker.

          Of course, any such effort would fail because Biden would veto the bill if it reached his desk. But unlike symbolic votes in 2015 and 2017 that attempted to pass such a bill in contravention of Roe v. Wade, if the “Life Begins at Conception” bill were to pass through Congress today, it would become the law of the land.

          McConnell and McCarthy are trying to tamp down expectations of a national abortion ban, but they can’t come out and say what they are thinking: “The quickest path to oblivion for the Republican Party is to impose the religious views of 20% of the population on 80% of the population.” But, in their effort to pack the Court and cling to power as a minority party, they have created a beast they cannot control.

          Democrats should leave McConnell and McCarthy in the private hell they have created and never look back. For campaign purposes, Democrats should assert that Republicans will impose a total abortion ban if given a chance. Let Republican candidates sputter and sweat as they explain why they oppose the demands of Heritage Action for America, Susan B. Anthony Pro-Life America, and CatholicVote. Frankly, I doubt many GOP candidates will pause for a moment on that question—leaving the field open for Democrats who are appealing to the 60% of Americans who oppose the holding in Dobbs.

          True, the rhetoric from the far right is upsetting and unsettling—understandably so. It isn’t every day that a major political party announces a platform that includes demoting 50% of American citizens to second-class status under the Constitution. But we cannot look away; instead, we must lean into the fight and make Republicans embrace the cruelty they are using to cling to minority rule.

Republicans occupy a burning platform built on arrogance and disdain, and the far-right is pouring gasoline on the fire. Democrats should take the opportunity to lead Americans to safer ground—where individual liberty and personal autonomy are guaranteed for every American.

Listen to Harvard Professor Michael Klarman discuss Dobbs.

          One of the unexpected pleasures (for me) of writing this newsletter is the ability to correspond with readers who are experts in various fields. One of those readers is Michael Klarman, the Kirkland & Ellis Professor at Harvard Law School. Professor Klarman recently delivered a lecture on Dobbs to some of his students. That lecture is online and available for review. The lecture is here: Michael Klarman's Meeting Room.

          I listened to the lecture online and was transported back to my days in law school. It is a pleasure to hear such a thoughtful and spirited take-down of Alito’s majority opinion in Dobbs. If you are interested in a legal analysis of Alito’s opinion, there is no better place to start. Thanks to Professor Klarman for sharing.

The Supreme Court’s loss of legitimacy.

          I frequently write that the current Supreme Court is illegitimate. A reader posted a thoughtful comment several weeks back asking that I refrain from attacking the legitimacy of the Court. Among other points, the reader noted that the Court is a democratic institution whose legitimacy may save our union in a moment of crisis.

          I acknowledged the reader’s point, but politely disagreed. I won’t bore you with my arguments. Instead, I will direct you to a brilliant essay by Adam Gopnik in The New Yorker, Highland Park and an Illegitimate Supreme Court. Gopnik reviews the result-oriented reasoning in Dobbs (forced birth) and Bruen (concealed carry), and writes:

           No reasonable person reading the two decisions can believe they were made in good faith. It is obvious that they were made to suit a fixed political agenda, reasoned backward from the vengeful results.

          Yet to speak of the Court’s loss of legitimacy, we’re warned, is to risk joining with those who subvert democratic institutions or declare the 2020 election illegitimate.

          As people die in the streets in ever greater numbers, and as women’s autonomy grows ever more curtailed, calling out the Court’s legitimacy may be the only way to save it.

          The problem of the Court’s legitimacy has nothing to do with my commentary (or that of any other writer). The Court’s legitimacy problem is of its own making. As Gopnik says, highlighting that fact for the Justice may provide a faint hope they will experience a collective epiphany and reform their ways. Failing that, expand the Court!

Why I don’t expect much from testimony by former White House Counsel Pat Cipollone.

          Many commentators predict that former White House Counsel Pat Cipollone will be the “John Dean” of the January 6th Committee investigation. (Historical reference: John Dean was Nixon’s White House Counsel; his testimony contributed significantly to turning public opinion against Nixon.) See Business Insider, Pat Cipollone Could Be the Key to a Possible Trump Criminal Charge. I don’t share that optimistic view of Cipollone’s testimony. I hope I am wrong, but I believe we should guard against raising unrealistic expectations.

          Even though Cipollone attempted to restrain Trump during the final weeks of his presidency, Cipollone has been and remains a Trump loyalist. Cipollone served on Trump’s first impeachment defense team—a questionable decision in two regards.

          First, as White House Counsel, Cipollone represented the Office of the President, not Donald Trump, in his capacity as an impeached president. Trump was on trial in the Senate, not the “Office of the President.” Cipollone was being paid by taxpayers while representing Trump personally.

          Second Cipollone witnessed Trump’s effort to extort Ukraine (in a conversation with Trump and John Bolton). Under applicable ethical standards, Cipollone should not have participated as counsel in a trial where he was a material witness. See Law & Crime, (1/27/20), Pat Cipollone Shouldn't Be on Trump Team: Stephen Gillers.

          Finally, Cipollone has returned to the private practice of law, where he has opened a “DC outpost” for a firm based in Los Angeles. His prospects in DC depend on his ability to attract conservative-leaning clients. He is very close to Fox “News” entertainer Laura Ingraham and is still described as a “big admirer” of Donald Trump.

          Cipollone is a smart lawyer and can find a way to answer questions truthfully without volunteering an iota of information more than necessary. His first loyalty is to Trump, so expect him to act accordingly. Again, I hope I am wrong. But his uncooperative stance to date is not promising.

Did Trump target Comey and McCabe for IRS audits?

          Defying long odds, two Directors of the FBI who butted heads with Trump were subjected to rare IRS audits that affect only 8,000 taxpayers each year. As Yogi Berra never said, “That’s too coincidental to be a coincidence.” The IRS Inspector General agrees and has opened an investigation into how two former FBI Directors managed to be audited one year apart—after they fell into disfavor with Trump. See CBS News, IRS internal watchdog, to review rare audits of Comey and McCabe.

          Many outlets are calculating the odds of this unlikely coincidence. There is no need to resort to complicated probability calculations. We know that Trump asked Bill Barr to prosecute both Comey and McCabe. Asking the IRS to audit their tax returns is child’s play after Trump attempted to use the DOJ as his private “muscle”.

          Let’s hope that the IRS Inspector General gets to the bottom of the “coincidence,” quickly. If Trump (or one of his lieutenants) ordered the IRS to conduct audits for political retribution, someone is going to jail. Per a tweet by Professor Laurence Tribe, “no doubt there is a serious federal crime here" if Trump used the IRS to target Comey and McCabe.

          Another Trump crime for Merrick Garland to investigate. Soon! Please!

Quick update on my COVID recovery.

          Many readers have sent emails inquiring about my COVID recovery. Thanks for your concern. I was doing great on Day 7, barely registering positive on antigen tests and with no symptoms. Alas! I am one of the unlucky few to experience a “rebound” infection and am testing positive again on antigen tests. My current COVID symptoms are much milder than my last COVID symptoms. On the upside, I expect to have super-duper immunity for at least three weeks!

          Seriously, though, I provide an anecdote for your consideration. Five members of my family traveled to New York for an event (outdoors). Two of us contracted COVID and flew back on the same plane, in the same aisle with the other three family members. One of those members of our family was our 21-month-old granddaughter. The adults all wore N95 masks. After a five-hour plane ride home (and holding our granddaughter in our laps), no one else was infected. I am not saying that masks were the reason the other three family members on that plane were not infected. But that is what happened, and based on that experience, I am wearing a mask whenever I go in public (outdoors, too) until this whole pandemic thing is over.

Concluding Thoughts.

          Several readers forwarded a copy of a newsletter from Lawyers Defending American Democracy. The newsletter was titled, The threat of exhaustion. If the title speaks to your mental state today, I recommend the newsletter for your consideration. The letter says, in part,

A public radio station host asked listeners to describe how they are coping with the onslaught of terrible news each day. Many callers described feeling: “depressed,” “fearful,” and “afraid of what will happen next.”

But this American state of exhaustion is itself a threat to democracy. It risks enabling a retreat from action not as a respite, but permanently. Our democratic institutions require more vigilance than ever.

We must all find the strength to determine where and how we will become involved over the coming months to speak out, write, donate, challenge, run for office, volunteer, sign our Democracy Commitment, and otherwise engage.

          The LDAD newsletter captures perfectly the challenge and the solution for our collective weariness. (If you are a lawyer, please check out the Democracy Commitment.) The antidote to despair is action. And, paradoxically, action is the antidote to exhaustion, as well. Much of our weariness comes from excessive focus on imagined fears, a weariness that can be dispelled by a single meeting with a group of like-minded, road-weary travelers who refuse to give up on democracy.

          If you are feeling exhausted, that is understandable. But it is also the point of the endless bad-faith lunacy spewed by the fringes of the Republican Party. They want to drain our emotional energy by engaging in performative cruelty and vacuous stunts. Ignore them and focus on the good people in your life who are fighting by your side to preserve democracy. Republicans are hurting themselves by carrying their mean-spirited culture war to absurd lengths. We have an opening to gain ground in 2022. Let’s take that opening for all it is worth.

          Talk to you on Monday!